N.H. should let the market sort out private-sector vaccine policies

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When New Hampshire Republicans start asking the state to regulate private businesses, something’s stopped making sense.

GOP Executive Councilors Joe Kenney and Dave Wheeler last week suggested the state should forbid private businesses from requiring employees to get a COVID-19 vaccine.

Florida and Texas have passed such big-government dictates, and Montana adopted a similar one in May.

But most of the 12 states that have passed some form of restriction on vaccine mandates have prohibited only government entities, not private ones, from requiring proof of vaccination. (New Hampshire is one of those.)

The reason for the distinction is simple. While it’s undisputed that government can set its own policies for its own facilities, it’s generally accepted, in Republican and conservative circles at least, that government ought to have only the most limited authority to impose its will on private business.

That the Biden administration is pursuing a legally dubious (read: blatantly unconstitutional) nationwide vaccine mandate is no justification for New Hampshire to impose a legally dubious mandate of its own, even in response.

It’s not difficult to parse out where the free-market, limited-government Republicans should fall iu this dispute.

Employers, as property owners, have the basic right to control access to company property and to determine what level of risk is acceptable within that property.

Government has a strictly limited role, intervening only to protect individual rights or to prevent externalities that harm others.

That’s why it’s illegal to dump raw sewage into the Merrimack River, or to racially discriminate. 

But the choice not to vaccinate against communicable diseases never has conferred a similar legal protection against discrimination because, obviously, no one has a natural or civil right to transmit dangerous communicable diseases.

Employees who choose not to get vaccinated against a potentially fatal communicable disease simply do not have a right to keep whatever job they happen to hold, even if their reasoning for refusing vaccination is sound and their concerns are valid.

They also have no right to force others to associate with them. Though they remain free not to vaccinate, they have no legal basis for then turning to the government to force others to associate with or employ them.

The state has no grounds for intervening in these private business decisions.

Gov. Chris Sununu called a state ban on private-sector vaccine mandates “Communism.” That goes too far. But such intervention certainly would represent a small step toward statism and away from property rights and personal freedom.

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On evictions, the answer is more property rights, not fewer

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The Center for Disease Control’s plainly unconstitutional eviction moratorium, begun in the Trump administration and continued by President Biden, is much more than a presidential abandonment of the rule of law. It’s a rejection — and reversal — of the very foundation on which James Madison based all government power — private property rights. 

And the problem it’s trying to solve would be much less of a problem were it not for other government restrictions on private property. 

Government in the United States exists to protect individual rights, including the right to property. In fact, Madison believed that government itself was justified primarily for the purpose of protecting property rights. 

As Thomas Jefferson put it in the Declaration of Independence, the purpose of government is to “secure these rights” — the unalienable ones endowed by man’s creator. 

Madison, explaining his thinking in 1792, wrote that protecting property rights was the very foundation of government. 

“Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”

Madison believed that people had property rights not just in physical objects they owned, but in their ideas, their beliefs, and their labor. The Constitution secures rights to free speech and religious worship because each of us has a property right in our own conscience and our own faith. Our ideas and our thoughts are a form of property on which government can have no claim, he believed. 

Protecting these individual rights from violation by other individuals or groups was the very purpose of government, Madison wrote. And violating property rights was inherently unjust.  

“That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.” 

The eviction moratorium is just such an arbitrary seizure. It appropriates private property for public purpose, and does so both illegally and unnecessarily. 

The federal and state governments have had other, less intrusive means of achieving the eviction moratorium’s goals. The obviously correct method is to pay landlords, not to appropriate their property. 

To this end, the federal government has made $46.55 billion in rental assistance available. Being the federal government, it has ineptly managed this aid, most of which remains undistributed. But the government can’t argue that its own bureaucratic incompetence is a justification for illegally appropriating private property. 

Today, many arguments for extending the moratorium rest primarily on leftist political theory, not public health. The idea is not that evictions will spread COVID, but that they are an evil in and of themselves because they allow people with power and money to exploit people who have less power and money. 

This, however, is Madison’s very definition of unjust government, that being one in which property “is violated by arbitrary seizures of one class of citizens for the service of the rest.”

Whether it exists for public health or “social justice” reasons, the eviction moratorium is an unconstitutional Madisonian nightmare. 

And, as with so many government “solutions,” it is a property rights violation issued to correct a problem caused by previous property rights violations. 

America’s primary housing problem is not that the country has too many “greedy” landlords, but that the country has too few of them. 

The vast majority of landlords in the United States are not corporations, but individuals, Census Bureau data show. As the Pew Research Center put it last week:

“Landlords aren’t a homogenous group of faceless corporations. In fact, fewer than one-fifth of rental properties are owned by for-profit businesses of any kind. Most rental properties – about seven-in-ten – are owned by individuals, who typically own just one or two properties, according to 2018 census data. And landlords have complained about being unable to meet their obligations, such as mortgage payments, property taxes and repair bills, because of a falloff in rent payments.”

It’s not big companies that provide so much American rental housing, but individuals who buy or build properties for investment purposes, often to provide a retirement income. And this entrepreneurship is suppressed by government.  

For decades, local governments have systematically constrained rental housing through a variety of private property restrictions. Knowing that people left free to use their property as they see fit would voluntarily build duplexes, apartments, and small rental homes, governments nationwide have banned or severely curtailed such construction. 

From rent control laws to bans on boarding houses and accessory dwelling units, localities have intentionally discouraged people from becoming landlords. Without such property restrictions, rental housing would be much more plentiful, rents would be much lower, and landlords would much have less power over tenants. 

Competition for tenants drives prices down and services up. Limiting the supply of landlords reduces that competition, which pushes rents up and services down. 

As is often the case, a seemingly intractable problem some say can be solved only by unprecedented government intervention was in fact caused in the first place by unwise government intervention and would be largely remedied simply by removing government restrictions that created the problem in the first place. 

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The time has come for housing reform

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When the COVID-19 pandemic hit New Hampshire last year, it’s unlikely that even the cleverest among us thought, “You know, this is going to turn people against local housing ordinances.”

Yet here we are in the summer of 2021, and housing is tied with COVID as the No. 2 concern of Granite Staters, according to a July University of New Hampshire poll. 

Granite Staters are most concerned about “jobs and the economy,” with 26% naming it their top concern, according to the July 26th poll. Ten percent of respondents cited “housing” as their top concern, tying it with COVID-19 for second place. 

That’s a five-fold increase from last July, when 2% of respondents named housing as their No. 1 concern. 

Surely this is related to the huge spike in home and rental prices that has made finding a place to live in New Hampshire feel like a Mad Max-style battle for a vanishingly scarce resource. 

Granite Staters aren’t quite donning leather outfits and fighting each other with home-made weapons over apartments and houses. Yet. But the stories from the real estate front lines aren’t pretty. Bidding wars have priced all but the best-financed families almost entirely out of the home and rental markets. 

Old timers tell stories of bygone days when high school graduates could get an apartment soon after landing their first job, and homes could be bought by people who didn’t own yachts and condos in Barbados. 

Children shake their heads, refusing to believe that such a Shangri-La ever existed. 

“Tell me, grandfather, of the time you rented an apartment without having to sell an organ on the black market.”

But the numbers don’t lie. As we noted last month, the median rent for a two-bedroom apartment has gone up 24% in the past five years. The median home price in New Hampshire just surpassed $400,000.

The record rise in home prices and rents has left people feeling helpless, frustrated and angry. They’re watching their housing dreams evaporate before their eyes, and they know something is wrong. They might not know what, but they sense that this wouldn’t happen in a normal market.

And they’re right. The COVID-fueled surge in demand has collided with a NIMBY-fueled housing shortage. The result has been record price increases that the market can’t correct because the numerous local ordinances that caused the shortage remain in place.

For a recently reported example, see the excellent New Hampshire Sunday News story on some of the cases taken up by the new Housing Appeals Board. 

A Francestown couple wanted to subdivide some of their own property so their children could build homes on it and all of them could live together on the family land. People have been doing this in New Hampshire since colonial times. But the town refused to approve the changes. 

The family took the case to the Housing Appeals Board, which ruled in their favor in three months. A similar case took about 20 months to go through the court system. 

Stories like this are common, and they raise serious questions about the way we regulate housing in the “Live free or die” state. When you can’t even build a home for your own children on your own land, is it really your land anymore? 

Towns increasingly act like all land belongs to the community, not to the property owners. In the Francestown case, officials wouldn’t approve the family’s proposal in part because the officials thought the land would look better with more trees. They demanded the family replace trees that had been previously — and legally — cut. 

This kind of regulatory overreach is how the state wound up with a housing shortage.

Things are so bad that housingmight be at the point where Stein’s Law kicks in. 

“If something cannot go on forever, it won’t,” economist Herb Stein mused. Housing prices cannot rise forever. At some point, people will demand solutions. We seem close to that point.

Our poll in May found that people are willing to relax local housing regulations in exchange for lower prices. A majority (51%-29%) support relaxing local regulations so developers can build more rental housing, and a plurality (45%-34%) support relaxing local regulations so developers can build more homes. 

The pandemic has exposed numerous unnecessary and harmful regulations, from prohibitions on telemedicine to bans on sidewalk dining. Local anti-housing ordinances can be added to the list. 

People want more housing, and rolling back bad ordinances is the way to get it. The only question is, who will have the political will to push for changes?  

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New Hampshire allows beer (or wine) with your pizza delivery, at last

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At the start of the COVID-19 shutdown last spring, restaurant customers wanted to order beer and wine with their delivery dinners. There was just one problem. That was illegal.

New Hampshire’s alcohol laws reserved beer and wine delivery exclusively for other types of businesses. This was such an obvious financial challenge for restaurants during the shutdown that fixing it became a top priority. 

Relief came on March 18 when the governor issued Emergency Order 6, which let restaurants include beer and wine with food deliveries. 

In the months that followed, no spike in alcohol problems was traced to these beer and wine deliveries. They proved so safe that during a February 16 public hearing on Senate Bill 66, a bill to make the change permanent, the New Hampshire Liquor Commission testified in favor. 

With the support of the Liquor Commission, SB 66 passed and was signed into law on July 9.

The absence of any public health fallout from relaxing the ban raised an obvious question. Why did this prohibition exist in the first place?

As with so many business regulations, the state’s ban on restaurant alcohol delivery had nothing to do with public health or safety. It was part of a post-Prohibition alcohol distribution system crafted by legislators, regulators and businesses. The system’s rigid categories limit competition and confer cartel-like status on certain industries.

Under the new law, you can order beer or wine from a restaurant, but only with food. Why only with food? 

In New Hampshire, delivering alcohol by itself has long been reserved for groceries and convenience stores. They can deliver beer and wine to customers in unlimited quantities, so the ban obviously is not a public health issue. 

The prohibition resides in RSA 179:15, which allows liquor license holders to “transport and deliver anywhere in the state such beverages and wines ordered from and sold by them….” All liquor license holders “except on-premises licensees,” that is.

During the Feb. 16 public hearing, the New England Convenience Store & Energy Marketers Association testified against SB 66, arguing that it would “unnecessarily expand existing licensing categories.”

That comment shows the problem with the laws. The legal presumption is that the categories are natural and any change is unnecessary. In reality, the categories are both unnatural and unnecessary. 

Consumers just want wine with their delivery dinner. Making them order dinner from the restaurant and wine from the supermarket never made sense. 

Though restaurants now can deliver beer and wine, some nonsensical restrictions remain. The order must include food, and the beverages “shall be transported in their original, manufactured, sealed containers and shall consist of no greater than 192 ounces of malt beverage or 1.5 liters of sparkling or still wine.”

And if you want to order your favorite restaurant’s signature cocktail to go, well, you’re in the wrong state. New Hampshire is the only New England state not to allow cocktail delivery during or after the pandemic. 

An amendment proposed by Sen. Kevin Cavanaugh, D-Manchester, to allow cocktail delivery did not survive. 

It should not have taken a global pandemic to legalize restaurant delivery of beer and wine, just as it should not have taken a global pandemic to allow the practice of telemedicine or the decriminalization of home haircuts. 

But regulatory regimes are incredibly hard to fix because so many people and organizations have vested interests in perpetuating them. 

And with so few media outlets covering regulatory issues, consumers have no idea that the reason they couldn’t get a beer with their delivery burger was because lawmakers thought people should be forced to give that business to retail stores, not to restaurants, no matter how costly or inconvenient that might be.

The good news for consumers is that this dumb regulation is dumped. The bad news is that many others remain. 

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New Hampshire is the only New England state not to allow cocktail delivery

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In an unexpected twist, New Hampshire has emerged from the COVID-19 pandemic as the only New England state that does not allow delivery cocktails.

In Boston, Bangor and Burlington, you can order a Cuba Libre with your delivery dinner. But not in Bartlett, or anywhere else in New Hampshire.  

Dozens of states — including the rest of New England — allowed restaurants to include beer, wine and cocktails in delivery orders when COVID-19 emergency orders closed restaurant dining rooms. New Hampshire allowed beer and wine, but not cocktails. 

When emergency orders were lifted, every other New England state extended cocktail delivery until the middle of next year or later. 

Maine, Massachusetts and Rhode Island allow delivery cocktails through at least the first quarter of 2022. Vermont’s allowance runs through June of 2023. Connecticut’s expires in June of 2024. 

They are among 30 states that have allowed restaurants to deliver cocktails, according to the Distilled Spirits Council. Fourteen states granted temporary allowances, and another 16 passed laws to make delivery permanent.

Only three states that allowed cocktails to go during the pandemic — New York, North Carolina and Pennsylvania — did not extend those emergency measures. 

Maybe in the next legislative session, the “Live free or die” state can catch up with the rest of New England on deregulating mixed drink delivery. 

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While the market drives up wages, government prevents it from providing more housing

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There are two sides of the affordable housing equation: incomes and housing prices. While the market pushes New Hampshire incomes higher, the government prevents it from lowering home prices. 

Casual news readers can get only one side of this picture because reports on wages and housing costs often focus on the wage side and ignore or downplay the home supply side.

For example, a recent report by the New Hampshire Low Income Housing Coalition cites the state’s minimum wage and shows various wage rates that would be needed to afford various types of apartments in the state. 

But as we pointed out in May, it’s almost certain that no one in New Hampshire earns the $7.25 minimum wage. Market competition has driven wages much higher.

With labor scarce (the state tabulated more than 34,500 job openings in the state in May and June), the market has been pushing up compensation for years. The average weekly wage of workers covered by unemployment insurance in New Hampshire rose by 18.5% from the fourth quarter of 2019 to the fourth quarter of 2020, state data show. 

The average weekly wage in the Manchester-Nashua metropolitan area was $1,565 in the fourth quarter of 2020, up $255 from the same quarter the year before. 

Employment website indeed.com pegs the average laborer pay in New Hampshire at $16.29 an hour. 

In short, a highly competitive labor market is taking care of the income side of the housing equation. But the opposite is happening on the home price side. 

As we noted last week, a severe shortage of housing is sending rents and home prices to record highs. 

Rents for a two-bedroom apartment have risen 24% in the last five years, reaching a median of $1,498 this year. The median home price statewide passed $400,000 this spring. In Rockingham County, it passed $500,000. 

In a free market, developers would quickly build more supply to meet the huge demand. After all, there are huge profits to be made right now selling homes. But local governments have prevented the housing market from functioning properly. 

Record price increases are not a post-pandemic phenomenon. Prices have been surging for years because local government regulations have prevented developers from meeting the housing market’s sky-high demand. 

Developers aren’t refusing to build. Towns and cities are refusing to let them. 

Local planning and zoning restrictions have made the construction of new units both difficult and expensive. That’s true of both single-family homes and multi-family housing. 

Estimates vary, but the state’s housing shortage generally is pegged at approximately 20,000 housing units. The newly formed New Hampshire Council on Housing Affordability identified a critical need for 13,500 housing units by 2024.

Eliminating this shortage will be extremely difficult, if not impossible, until local governments remove some of the unnecessary obstacles that are causing it. 

Local elected officials would be more likely to remove housing obstacles if they understood that vocal anti-housing activists are not representative of most residents. 

Our poll in June found that a majority of New Hampshire voters (51%-29%) supported relaxing some local government regulations to allow more rental housing, and a plurality (45%-34%) supported relaxing some local regulations to allow for more single-family housing. 

Allowing the construction of much-needed housing is not unpopular. In fact, opponents of new construction are in the minority in New Hampshire. Unfortunately, they make up majorities of many local boards and of the crowds who turn up to their meetings. 

That’s a major reason why the market solution we’ve seen on the income side of the housing equation has not happened on the supply side. 

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State’s housing shortage has driven rents up 24% in five years

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New Hampshire’s severe housing shortage continues to drive prices to record highs and put rentals and single-family homes out of reach for many families. 

  • The median price of a two-bedroom rental in New Hampshire has risen 24% in the last five years and 43% since 2011, reaching a record high of $1,498 a month (including utilities) this year, the New Hampshire Housing Finance Authority’s annual rental survey has found. 
  • The median price of a two-bedroom rental rose 6% last year, and the price for all rentals rose 7%. 
  • In Hillsborough and Rockingham Counties, the median rent is more than $1,600 a month (including utilities). 
  • The vacancy rate for two-bedroom apartments is down to 0.6% and the rate for all units is 0.9%. (A healthy vacancy rate is around 5%.) In every county, the vacancy rate is below 1% for two-bedroom units and below 2% for all units. No New Hampshire county has had a vacancy rate above 4% for all units since 2017. 
  • The percentage of New Hampshire two-bedroom rental units considered affordable to the median-income renter household (meaning the household would spend no more than 30% of its income on rent) is just 13%.
  • Single-family home prices are also hitting records. The median home price in Rockingham County hit $509,850 in June. Statewide, it hit $409,000.
  • In 2012, homes spent an average of more than 125 days on the market. In June, homes spent an average of 18 days on the market. 
  • In 2012, there was a more than 10-month supply of inventory for single-family homes. In June, it was down to 1.2 months. 

 The state’s housing shortage is not new. It’s been a well-known problem for decades. It has persisted despite numerous state-level efforts to address it. But those efforts, often focused on housing subsidies or task forces, have made little impact. The Housing Appeals Board, the most promising recent reform, just started its work this year. And its focus is on enforcing existing laws and rules to ensure that local governments don’t overstep their legal authority.

The shortage persists, and has become worse, because it is largely a product of local regulations that restrict housing development. Local ordinances often outlaw small homes on small lots, severely restrict mixed-use development, and make it nearly impossible to build multi-family buildings even in areas where they are allowed. 

The cumulative result over many decades is a massive shortage of housing. Estimates vary, but the shortage generally is pegged at approximately 20,000 housing units. The newly formed New Hampshire Council on Housing Affordability identified a critical need for 13,500 housing units by 2024. 

Whatever the actual number is, filling the need will be no less challenging than it has been in recent decades — as long as local governments continue to needlessly restrict new home construction and deny needed developments at the urging of a handful of anti-housing activists. 

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For occupational and business regulations, the pandemic has brought mostly marginal changes

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When PepsiCo opened the first Pizza Hut in the Soviet Union in 1990, one challenge the company had was convincing Soviet bureaucrats that the cooks didn’t need to be trained chefs. 

“This is something the Russians don’t understand,”Andrew Rafalat, Pizza Hut’s regional director for the Soviet Union and Eastern Europe, told The New York Times in 1990. ”You don’t want trained cooks. You want kids off the street. Within a few weeks, they are the best pizza cooks in the world.”

Obviously, New Hampshire isn’t close to being the Soviet Union. (Burlington, Vt., is another story.) But New Hampshire is not as “live free or die” as Granite Staters would like to believe. 

Too many laws and ordinances here would look familiar to the Moscow bureaucrats who thought pizza cooks ought to be highly educated, credentialed and government approved. 

Recent legislation offers multiple examples.

Current law requires bars and restaurants to apply to the Liquor Commission for permission to serve drinks in common spaces such as sidewalks or parking lots, then also get permission from their local government. 

There’s no need for this double approval. Permission from the local government, is enough. Yet it took a global pandemic to convince lawmakers that this requirement should go.  

When the pandemic hit, already short-staffed nursing homes couldn’t fill positions to assist nurses because there weren’t enough licensed nursing assistants. 

Imagine telling the family of a nursing home patient that you’re sorry, but their loved one has to go with less care because the state has decreed that no care at all is better than care from someone who lacks the most prestigious credential. 

It took an emergency order to allow nursing homes to hire and quickly train unlicensed nursing assistants (called temporary health partners) to work under the supervision of licensed nurses. 

Senate Bill 155, which a committee of conference approved with amendments on Monday, would fix those and some other burdensome regulatory requirements.

Senate Bill 133, also approved by a committee of conference on Monday, addresses a few other occupational licensing laws. One fix is to open a path to licensure for the temporary health partners allowed in SB 155. 

Anyone who worked as a temporary health partner for at least 100 hours as a result of the pandemic would be considered as having completed a nursing assistant training course and would be eligible for licensure as a nursing assistant.

Associate teachers at child day care centers would get a similar break if SB 133 becomes law. The bill would allow 30 hours of “documented life experience” to substitute for 30 hours of “training in child growth and development.”

Also getting a break would be small restaurants and cafes. State law requires licensed food service establishments to have a “Certified Food Protection Manager.” The bill would let the CFPM (that doesn’t sound Soviet at all) for small operations be on call. 

The bill also would include psychologists in the list of medical professionals who can engage in telemedicine. (It’s crazy that this wasn’t allowed before.)

Then there are kids’ lemonade stands. Licensing kids’ lemonade stands would seem like a Moscow idea. But local municipal ordinances that require food vendors to obtain permits or licenses usually don’t have an exemption for children selling soft drinks in their own yards. 

Though there have been no news stories of police shutting down kids’ lemonade stands in New Hampshire, technically the stands are illegal if ordinances don’t specifically exempt them.

That’s why House Bill 183 would create a state-level exemption for children age 14 and younger who sell soft drinks from their own property. It establishes under state law that the only permission kids need to set up a lemonade stand is from their parents. (The House concurred with the Senate version last week and awaits Gov. Chris Sununu’s signature.)

These small changes would make New Hampshire a bit freer by slightly reducing the level of government permission needed for certain commercial practices. Other bills have addressed other areas where the pandemic revealed certain regulations to be entirely unneeded, even harmful. 

And yet, as this legislative session winds down, it’s remarkable how little has changed. The state of emergency is over. The pandemic is receding. But the state’s thick net of rigid regulations remains largely intact. 

Most changes were made on the margins. There was no comprehensive rewriting of occupational licensing laws or business regulations. Even after a wave of restaurant closures, lawmakers couldn’t bring themselves to allow cocktails to go. Massachusetts will legalize to-go restaurant cocktails before New Hampshire does. 

State laws and local ordinances remain run through with the presumption that people can’t figure out how to engage in economic activity safely unless they first obtain government permission and government-mandated training. 

A lot of good changes have been made. But we still can’t let go of the notion that 424 legislators should tell the pizza parlor how to make pizza. 

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Legislators might soon legalize sidewalk dining in New Hampshire

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Summer weather is here, and restaurants from Portsmouth to Hanover are opening up for outdoor dining on streets and sidewalks. But unless the Legislature acts, those popular outdoor seating areas are in jeopardy when the state of emergency expires. 

State law doesn’t expressly allow holders of liquor licenses to add service in common areas, such as public sidewalks or parking lots. The relevant statute (RSA 178:24) addresses expansion of service into areas license holders control, but not into public spaces.

On May 31, 2020, Gov. Chris Sununu allowed restaurants to offer outdoor dining under Exhibit C of Emergency Order 40. (Local approval is required if the expansion is into a shared space, such as a sidewalk.)

The purpose was to give restaurants a chance of surviving the pandemic. People stopped going to restaurants when the pandemic hit last year, then the governor ordered indoor dining rooms closed. When they opened back up, people were reluctant to return. Allowing outdoor dining was intended to authorize restaurants to serve their customers in a way that is common in many other parts of the world, but not in New Hampshire. 

(We use the common term “outdoor dining” here, but really what the state’s regulating is the service of alcohol.)

Of course, the big question is: Why does state law interfere with sidewalk dining (drinking) in the first place? Why not just clarify that liquor license holders are not prohibited by the state from expanding into common spaces?

Senate Bill 155, as amended by the House, would do that. 

The House-passed version states that “a licensee may expand into a shared space, such as a sidewalk or street, with the approval of local officials.” The Senate version extended the temporary allowance for outdoor dining for another two years.

For the House amendment’s permanent authorization to become law, the Senate would have to agree to the amendment. The bill could come before the Senate for a vote on Thursday. 

In addition to allowing outdoor dining for liquor license holders, SB 155 would codify several other provisions contained in Gov. Chris Sununu’s COVID-19 emergency orders.

  • It would create a new legally recognized medical occupation called a “Temporary Health Partner,” which is essentially a nurse’s aid. When the pandemic hit, hospitals were short-staffed but could not bring in unlicensed assistants just to help with simple tasks. This would let medical providers hire helpers who would work under a nurse’s supervision. 
  • It would authorize the emergency medical licensure of various types of medial professionals, such as doctors who let their licenses expire within the last three years, and nursing students. 
  • It would let pharmacists sell COVID-19 testing kits and administer the tests. 
  • It would let out-of-state pharmacies providing investigational drugs to New Hampshire patients to be licensed as mail-order pharmacies temporarily for COVID-related reasons.
  • And it would let summer camps that temporarily closed for COVID-related reasons maintain their status under local ordinances as a continuously operating camp. It basically prevents their grandfathered status from being revoked because they closed during the pandemic. 

The bill offers a nice introduction into the world of unneeded state regulations. It would remove just a few of the many state laws that prohibit the private sector from serving customers in ways that lawmakers of the past either did not anticipate or did not want to allow, for whatever reason.  

If it passes, sidewalk dining could become a permanent part of New Hampshire life.

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Will legislators legalize kids’ lemonade stands this week?

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Temperatures are expected to hit 90 degrees in much of New Hampshire this week. The state’s largest school district closed Monday on account of the heat. Other school districts are letting out early. What will kids be doing? Some of them are sure to set up lemonade stands. Technically, that would be illegal in many communities unless the children obtain a permit first.

It’s not that communities specifically target kids’ lemonade stands. It’s that municipal ordinances that require permits to sell food or drinks typically don’t contain exemptions for children. 

In other states, police have been called to shut down unlicensed lemonade stands. Stories in recent years from Colorado, Texas and New York received national news coverage, which prompted legislators in New Hampshire and other states to propose laws exempting child-operated soft drink stands from local permit requirements.

House Bill 183 would do that in New Hampshire. It has passed the House and Senate in different forms and is back for consideration in the House, which meets on Thursday. 

The House version exempted people up to age 18 who sell soft drinks from municipal vendor permit requirements. 

The Senate version exempts people under the age of 14 who “are selling soft drinks on family owned or leased property.” 

(The “soft drink” language is intentionally broad enough to cover children who might sell apple cider, powdered sugary drinks, canned soda or other soft beverages instead of lemonade.)

Under the Senate amendment’s language, children selling lemonade on public property (say, at a sports field, basketball court or public park) would still have to obtain a permit if a municipality required one. 

Both the House and Senate versions of the bill met with strong opposition. In the House, 163 members voted against it. On the other side, 10 senators voted against it. 

A major argument against the bill was that no one could produce a case of police shutting down a child’s lemonade stand in the state. Therefore, it was argued, the bill isn’t needed. 

However, the lack of a publicized arrest lemonade or stand shut down does not mean that police interactions aren’t happening. It likely means that officers are exercising their discretion and letting legal infractions slide. 

Several years ago, the author of this story had a police officer stop at his child’s lemonade stand to ask if we had a permit (we didn’t) and to inform us that we probably needed one. But he didn’t order us to shut down the stand. 

The argument that police have not enforced the law is no defense of the law. Having permit requirements that no one intends to enforce is folly, not good governance. What’s the point of keeping broad and enforceable regulations if no one ever intends to enforce them? 

The obvious answer is that municipal officials intend to reserve the power to enforce these ordinances at their discretion should they encounter a situation in which they feel the need. In other words, they intend to enforce these ordinances selectively, rather than apply them uniformly. That is a recipe not only for sewing distrust of government, but also for biased policing.  

The New Hampshire Municipal Association in fact testified against HB 183 by simultaneously arguing that municipalities “are not going to try and regulate kids lemonade stands” and that municipalities would regulate the stands on a case-by-case basis “if kids are doing something that is unsafe and the police should be able to come along and ask them to move,” as described by the committee hearing transcript.

Keeping a broad ban on unlicensed lemonade stands in place on the off chance that police might one day need to tell kids to stop doing something unsafe (something unrelated to the sale of lemonade) offers an extremely weak case for keeping such bans in place. 

License and permit requirements often are drawn too broadly, and legislators legislators are taking notice. For example, it has long been a criminal offense for anyone to cut hair without a state license, even if doing it at home on one’s own friends and family members. 

Legislators recognized this problem (after the Josiah Bartlett Center pointed it out) and this year passed a bill to decriminalize unlicensed hair cutting that isn’t done for money. 

Local food vendor permit requirements often go too far as well, covering children who sell drinks from their own yards. 

House Bill 183 would prohibit these municipal food vendor permits from applying to minors under the age of 14 who sell soft drinks from property their family owns or leases. It is narrowly drawn so that it still allows municipalities to control vending on municipal property and when done by high school students. 

It is one of the bills House members could take up at their session on Thursday. It will be interesting to see if it continues to meet such strong opposition during this week’s heat wave. 

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